1613326 (Refugee) - [2019] AATA 829

1613326 (Refugee) [2019] AATA 829 (3 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1613326
COUNTRY OF REFERENCE:                  Ukraine
MEMBER:Anne Grant
DATE:3 January 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 03 January 2019 at 2:50pm
CATCHWORDS

REFUGEE – protection visa – Ukraine –particular social group – draft evaders – conscription – right to enter Russia and Bulgaria – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
SZMWQ v MIAC (2010) 187 FCR 109
SZQRM v MIAC, [2013] FCA 1297
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Ukraine, applied for the visa on 15 September 2014 and the delegate refused to grant the visa on 25 July 2016.
The applicant appeared before the Tribunal on 10 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother, [name deleted].
The applicant was represented in relation to the review. The representative (the applicant’s mother) attended the Tribunal hearing.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1613326 (Refugee)

Details

AGLC: 1613326 (Refugee) [2019] AATA 829
Case: [2019] AATA 829
Decision Date: 3 January 2019

CaseChat Overview and Summary

The applicant, a Ukrainian national of Bulgarian ethnicity, sought a protection visa in Australia. He claimed a well-founded fear of persecution if returned to Ukraine, specifically fearing conscription into the Ukrainian army due to his objection to fighting and killing. He also raised concerns about difficult living conditions in Ukraine and a desire to remain in Australia with his family. The delegate had previously rejected his application on the basis that he had a right to enter and reside in Russia or Bulgaria, which he had not fully utilised.

The court was required to determine whether the applicant had a well-founded fear of persecution for a Convention reason, or alternatively, whether there were substantial grounds for believing that his removal to Ukraine would result in a real risk of significant harm. A further issue was whether the applicant had failed to take all possible steps to utilise his right to enter and reside in a third country. The Tribunal was required to make a fresh decision, considering the applicant's claims and relevant country information and guidelines.

The court found that the applicant's objection to military service was not based on religious belief but on a personal aversion to killing. While acknowledging his fear of conscription and potential imprisonment, the court considered the provisions of Russian and Bulgarian law regarding the entry and residence of foreign citizens. The court noted that under Russian Federal Law No. 115-FZ, a temporary residence permit could be issued within or outside quotas, with various conditions. Similarly, the Foreigners in the Republic of Bulgaria Act outlined provisions for short-stay and long-stay visas, with specific durations and conditions for entry and residence. The court concluded that the applicant had not satisfied the criterion for a protection visa under section 36(2) of the Act, implicitly finding that he had not exhausted his options to reside in Russia or Bulgaria.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issues in this case are whether the applicant has a well-founded fear of being persecuted for one of the Convention reasons if he returns to Ukraine and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Ukraine, there is a real risk that he will suffer significant harm. In this case, also, an issue is whether the applicant has a right to enter and reside in a country which he has not taken all possible steps to utilise. At the commencement of the hearing I explained to the applicant that I was making a fresh decision based on my own findings about the facts in his case. I am not bound by the delegate’s decision, and must therefore be satisfied that he satisfies each of the criteria in the legislation, including his having a well founded fear of persecution or the alternative complementary protection provisions, even though the delegate decided to reject his application because he was found to have a right to enter and reside in a third country that he had not taken all possible steps to utilise. The applicant is a [age deleted] year old man from [Region 1] in Ukraine. He is of Bulgarian ethnicity. He claims to fear that, if he returns to Ukraine, he will be required to join the Ukrainian army by conscription, and he does not wish to fight, carry weapons or kill other Ukrainians. At hearing, he confirmed that he maintains his fear of being conscripted and that his objection to being conscripted is not due to his religious beliefs, but because he does not want to kill or be killed in the conflict. He prefers to stay in Australia where he has family. The applicant’s evidence at hearing was that he applied for protection whilst in Australia, because he heard that the Ukrainian government was taking people off the streets to fill the army, and he was fearful of that happening to him if he returned to Ukraine. As far as he knows, he has not been officially ‘called up’ for military service. However some of his friends in Ukraine have fled the country to avoid military service. One of them went to Russia. The applicant in his written claims claimed that if he refused to undertake military service, he would face imprisonment for ten years in Ukraine. At hearing, the applicant also raised concerns about living conditions in Ukraine being hard. His father passed away and his grandmother died in [2018]. He has no close family left in Ukraine. He also said that the price of fuel and food is high. Many people are forced to work multiple jobs. The family he has in Ukraine (his half-brother and distant relatives) are not particularly close to him, and his close family is here in Australia. He is unaware if the family has any property in Ukraine. His half-brother is looking after his grandmother’s affairs.

Decision

Reasons for decision

Accordingly, the applicant does not satisfy the criterion in s.36(2).DECISION The Tribunal affirms the decision not to grant the applicant a Protection visa.Anne GrantMember

Ratio Decidendi

Legal Principle Established

Federal Law of No.115-FZ of July 25, 2002 on the legal position of Foreign Citizens in the Russian Federation provides as follows:Article 6. Temporary Residence of Foreign Citizens in the Russian Federation1. A permit for a temporary residence may be issued to a foreign citizen in the framework of the quota, approved by the Government of the Russian Federation. The term of validity of a permit for a temporary residence comprises three years.2. The quota for the issue of permits for a temporary residence to foreign citizens is annually approved by the Government of the Russian Federation on the proposals from the executive state power bodies of the subjects of the Russian Federation, with an account for the demographic situation in the corresponding subject of the Russian Federation and for the given subject's possibilities to provide for the foreign citizens' maintenance.3. A permit for a temporary residence may be issued to a foreign citizen without an account for the quota, approved by the Government of the Russian Federation, if:1) he was born on the territory of the RSFSR and was in the past a citizen of the USSR, or if he was born on the territory of the Russian Federation;2) he is recognized as incapable of working, while he has an able-bodied son or daughter, who is a citizen of the Russian Federation;3) he has if only one parent, incapable of working, who is a citizen of the Russian Federation;4) he is married to a citizen of the Russian Federation, whose place of residence is in the Russian Federation;5) he has made investments in the Russian Federation in an amount, established by the Government of the Russian Federation;6) in the other cases, stipulated by the federal law. The Foreigners in the Republic of Bulgaria Act also includes the following provisions in relation to short stay and long stay visas (emphases added):Art. 14. (Amend., SG 42/01; amend. –SG 29/07; amend. –SG 9/11) (1) A short-stay visa shall be issued to a foreigner with the purpose of transit or planned stay on the territory of the Republic of Bulgaria.(2)The short-stay visa with the purpose of transit shall be with duration of the stay on the territory of the Republic of Bulgaria not longer for two days, if not otherwise provided in an international agreement, and shall be issued for a foreigner, who enters the Republic of Bulgaria and leaves its territory when travelling from one country to another country. The summary duration of stay with such visa cannot exceed three months within each 6-months period, counted from the date of the first entrance on the territory of the Republic ofBulgaria.(3) The short-stay visa with the purpose of planned stay shall be with duration not longer than three months, within each six-month period, counted from the date of the first entrance on the territory of the Republic of Bulgaria(4) The short-stay visa may be issued for once-, twice- or multiple- entrance.(5) The time period of validity of the visa and the duration of the permitted stay shall be determined on the base of the executed check of the terms of entrance and risk assessment when considering the visa application. Time-period of validity of the visa cannot be longer than 5 years.Art. 14a. (New, SG 42/01; revoked –SG 103/09)Art. 15. (amend. –SG 29/07) (1) (suppl. –SG 9/11; suppl. –SG 21/12) Long-stay visa with a validity term of up to 6 months and with right to stay for up to 180 days shall be issued to a foreigner who wishes to settle for an extended period or permanently in the Republic of Bulgaria.(2) (suppl. –SG 16/13) Long-stay visas with a validity term of up to one year and with right of stay for up to 360 days may be issued to foreigners, who carry out scientific research or who are students in one year educational programmes, post-graduate students or trainees, foreigners, sent on a business trip by a foreign employer in order to perform specific tasks, related to control and coordination of fulfilment of a contract for tourist services, as well as to foreigners, sent on a business trip by a foreign employer for making and maintaining investments, certified following the procedure of the Investment Promotion Act.(3) A long-stay visa shall entitle the foreigner to repeated entry in the territory of the Republic of Bulgaria within the validity termthereof.(4) A long-stay visa shall be invalidated at issuing a residence permit by the services for administrative control of foreigners.